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Now browsing: Hometown News > News > Volusia County

Town wins appeal in property dispute
Rating: 2.76 / 5 (34 votes)  
Posted: 2013 Jul 12 - 06:11

By Laurie Sterbens

For Hometown News

An appeals court ruled in favor of the town of Ponce Inlet last week in the latest round of litigation initiated by Pacetta LLC.

The July 5 ruling by the 5th District Court of Appeal found an earlier court ruling erred in finding the town liable to Pacetta for damages under the Bert J. Harris Private Property Protection Act.

"We're very excited, but there's a long way to go until we reach the end," Ponce Inlet Mayor Gary Smith said.

Pacetta has the right to appeal for a rehearing of the Harris Act ruling or could appeal to the state Supreme Court, Mayor Smith said. "Until they do something or the time limits expire, it's still in limbo."

The town issued a written statement to Ponce Inlet citizens on Monday, July 8, seeking to clarify the impact of the ruling, which may have been confused by a misstatement in another newspaper. That article stated that Pacetta attorney Peter Heebner said the ruling only affected one of the 10 parcels involved.

"This is false," the town notice stated, citing page 50 of the original order in which Judge William A. Parsons ruled in favor of Pacetta "as to parcels one through 10."

"Therefore, the reversal of this finding by the Appellate Court means that Pacetta has no Harris act claim as to any of its parcels," the statement said.

Mayor Smith said the town wanted to clarify because otherwise "(the citizens) would think this win wasn't as big a deal as it as it really was."

Mr. Heebner did not returned calls seeking comment as of press time.

Addressing the next stages of litigation, the town's statement continued, "What remains of this lawsuit now are claims by Pacetta against the Town for an alleged 'taking' of four of Pacetta's parcels as well as claims for alleged procedural and substantive due process violations.

The litigation began when the town passed development restrictions on the size of dry boat storage and prohibited it in it the zoning district where Pacetta's 16 acres of riverfront property are located. The property owners, Lyder and Simone Johnson, sued under the Bert J. Harris Act, which enables property owners to seek compensation for loss of property value caused by government action.

In a non-jury trial, the lower court ruled in favor of Pacetta. The town appealed.

Judge Parsons ruled the town had taken property rights from the Johnsons. In September 2012, Mr. Heebner rejected the town's counter offer to his client's $35 million settlement proposal, saying of the proposed $1.5 million single payment, "This offer makes no sense in the real world we have to live in."

In the July 5 ruling, the appeals court stated, "At the time Pacetta purchased its properties, Ponce Inlet's Comprehensive Land-Use Plan expressly prohibited the type of development Pacetta proposed for its properties. Any assurances by town officials that the Comprehensive Plan would be amended so as to authorize Pacetta's development plans could not be relied upon in good faith by Pacetta, since the town officials lacked the authority to unilaterally amend the Comprehensive Land Use Plan."

State and county governments, as well as the local government, must all approve land use plans before they go into effect.

Mayor Smith said Monday that anyone interested in reviewing the history of the litigation can find it in the "Hot Topics" section at the town's website, ponce-inlet.org.

"It's a very complex issue and it's not easily described or understood," he said.

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